To be argued by:Margaret A. Murphy, Esq.Time requested: 20 minutes

Appellant Division Docket Nos.: CA 17-01956 and CA 17-01957

State of gork

Court of appeals:CAYUGA NATION, by and through its lawful governing body,

the CAYUGA NATION COUNCILPlaintiff-Respondent,

v.

SAMUEL CAMPBELL, CHESTER ISAAC, JUSTIN BENNETT, KARLHILL, SAMUEL GEORGE, DANIEL HILL, TYLER SENECA,

MARTIN LAY, WILLIAM JACOBS, WARREN JOHN, WANDA JOHN,BRENDA BENNETT, PAMELA ISAAC, et aL,

Defendants-Appellants,

DUSTIN PARKER,Defendant,

and

COUNTY OF SENECA,

Defendant-Intervenor-Respondent

BRIEF ON BEHALF OF DEFENDANTS/APPELLANTS

MARGARET A. MURPHY, P.C.Attorneys for Defendants-Appellants

Attorneys for Defendants-Appellants Margaret A. Murphy, of counsel512 Jamesville AvenueSyracuse, New York 13210Telephone: (315) 475-2559Facsimile: (315)475-2465

JOSEPH J. HEATH, ESQ.Jenna Macaulay, of counsel

5354 Briercliff DriveHamburg, New York 14075Telephone: (716) 867-1536Facsimile: None

MacKAY, CASWELL, CALLAHAN, P.C.Attorneys for Defendants-Appellants

Joseph M. Callahan, of counsel6739 East Myers Road

East Syracuse, New York 13057Telephone: (315) 472-5201Facsimile: (315)472-5002

TABLE OF CONTENTS

iTABLE OF AUTHORITIES

1JURISDICTIONAL STATEMENT

2QUESTION PRESENTED

5STATEMENT OF THE CASE

6A. Factual Background of Dispute

9B. Prior State Court Action

10C. The Current Action Pending on Appeal

11D. The Mail-in Survey Initiative & Statement of Support

16ARGUMENT

THE CAYUGA NATION HAS EXCLUSIVE JURISDICTIONOVER ITS INTERNAL AFFAIRS AND GOVERNANCE 16

I

A. Federal and State Courts Lack Jurisdiction to ResolveDisputes between Feuding Political Factions within theNation’s Council 17

B. The BIA Has No Role in Selecting the Nation’s Leaders 19

II NO FEDERAL DISTRICT OR CIRCUITE COURT HASRULED ON THE MERITS OF THE ADMINISTRATIVECHALLENGE TO THE BIA DETERMINATION 27

CONCLUSION 28

i

TABLE OF AUTHORITIES

Case Authority

26Alden v. Maine, 527 U.S. 706, 732 (1999)

18Alexander v. Hart, 64 A.D.3d 940 (3d Dep’t. 2009)

Attorney’s Process & Investigation Servs. v. Sac & Fox Tribe,609 F.3d 927 (8th Cir. 2010) 21

Bennett v. Fink Construction Co., Inc.s 47 Misc.2d 283(Erie Co. Sup. Ct. 1965) 19

Bowen v. Doyle, 880 F.Supp. 99 (W.D.N.Y. 1995) 16-19, 23,29

Cal. Valley Miwok Tribe v. United States, 515 F.3d 1262(D.C. Cir. 2008) ......, 20-21

Cayuga Nation v. Jacobs, 44 Misc.3d 389 (Seneca Co. Sup. Ct 2014)appeal dismissed 132 A.D.3d 1264 (4th Dep’t. 2015) 9, 19

Cayuga Nation v. Tanner, 824 F.3d 321 (2d Cir. 2016) passim

Cayuga Nation v. Zinke, 302 F. Supp.3d 362(D.C. 2018) 27, 28

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831) 16,21

Kaufinan v Eli Lilly & Co., 65 N.Y.2d 449 (1985) 26

Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) 17

Poodry v. Tonawanda Band of Seneca Indians,85 F.3d 874 (2d Cir. 1996) 6,7

Ransom v. St. Regis Mohawk Educ. & Community Fund, Inc.,86 N.Y.2d 553 (1995)

Seneca v. Seneca, 293 A.D.2d 56 (4th Dep’t. 2002)

18

18,26

ii

Timbisha Shoshone Tribe v. Salazar, 678 F.3d 935 (D.C. Cir. 2013) 23

United States v. Wheeler, 435 U.S. 313 (1978) 16-17

Williams v. Lee, 358 U.S. 217 (1959) 16

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) 16

Administrative Case Authority

Cayuga Indian Nation of New York v. Eastern Regional Director,58 IBIA 171 (2014) 6, 19, 22, 25

George v. Eastern Regional Director,49 IBIA 164 (2009) 5, 6, 7, 8, 10,19,20

LaRocque v. Aberdeen Area Director, 29 IBIA 201 (1996) 20

Statutory Authority

25 U.S.C. § 2 25

25 U.S.C. § 233 17,18, 26

CPLR § 5519(a)(6) 6, 10

CPLR § 5601(a) 1

CPLR § 5602(b)(1) 1

N.Y. Const., art. 6, § 3 1

U.S. Const., art. II, §1 14

U.S. Const., art. VI, cl. 2 25

iii

JURISDICTIONAL STATEMENT

On July 25, 2018, the Clerk of the Appellate Division for the Fourth Judicial

Department (“Fourth Department”) entered the Memorandum and Order from

which Defendants-Appellants has filed this appeal. (A.1 3-10). In a split 3-2

decision, a majority of the appellate panel affirmed the Order of Acting Supreme

Court Justice Dennis F. Bender (A.3), which had denied the Defendants-

Appellants’ motion to dismiss and granted Plaintiff-Respondent’s preliminary

injunction. (R.2 11-13).

Because the Memorandum and Order is not an order that finally determines

the action, a dissent by two justices on a question of law does not allow

Defendants-Appellants to take an appeal to this Court as a matter of right. CPLR §

5601(a). Defendants-Appellants, therefore, moved before the Fourth Department

for leave to appeal pursuant to Article 6, § 3 of the Constitution of the State of

New York and CPLR § 5602(b)(1). (A. 1).

On September 28, 2018, the Fourth Department granted the motion for leave

to appeal after finding “a question of law has arisen that ought to be reviewed by

the Court of Appeals.” (A. 1-2).

1 “A.” refers to the Appellants’ Appendix filed with this Court pursuant to Rule 500.14 (b) of thisCourt’s Rules of Practice.

2 “R.” refers to the Record on Appeal filed in the Appellate Division for the Fourth JudicialDepartment and subsequently filed with this Court pursuant to Rule 500.14(a)(2).

1

QUESTION PRESENTED

In the Fourth Department’s Memorandum and Order, the entire panel of

justices agreed, it lacked subject matter jurisdiction to resolve the Cayuga Nation’s

leadership dispute or to intrude upon issues involving the Cayuga Nation’s internal

governance. (A. 6, 7). The panel, however, was divided on whether the Court

could defer to a determination made by the United States Department of Interior,

Bureau of Indian Affairs (“BIA”), recognizing one political faction for the

purposes of granting and administering federal funds. (A. 7).

The majority held it “must defer” to the BIA’s determination because the

BIA, as part of the executive branch of the federal government, had the authority

and right to resolve this long-standing dispute over which of two competing

factions should have control of the Cayuga Nation (the “Nation”). (A. 6-7).

While recognizing it lacked the authority to resolve internal governance disputes,

the majority held it could “accord due deference to the BIA’s conclusion” that had

“resolved the [leadership] dispute in favor of plaintiff.” (A. 6). Like the BIA, the

majority accepted a mail-order survey, conducted in July of 2017, as evidence of

the Cayuga people’s support of the political faction known as the Halftown

Council. (A. 7).

The five individuals, known as the Halftown Council, who are responsible

for commencing this action on behalf of the Cayuga Nation Council, are neither

2

condoled chiefs nor clan mothers. (R. 282). These individuals now claim to be

the Nation’s lawful governing body “by virtue of a decision of the Bureau of

Indian Affairs (BIA) that recognized those members” for purposes of granting and

administering federal funds (A.7). The individual Defendants-Appellants, however,

“include clan chiefs, clan mothers and clan representative who also claim to

constitute” the Nation’s lawful governing body “under its traditional laws” and

who have been previously recognized by a previous BIA Regional Director as the

members of the Nation’s lawful governing body. (A. 7). This rival political

faction is known as the Jacobs Council. (R. 54).

Based on these facts, the dissent rejected the notion that “once deference is

afforded to the most recent BIA decision, Supreme Court has jurisdiction to

resolve the claims in the complaint without impermissibly intruding into issues of

the Nation internal governance.” (A. 7). In the dissent’s view, “the majority’s

assumption ignores the specific claims alleged in the complaint,” for trespass,

conversion, tortious interference with prospective business relations, replevin and

As the dissent observed, each of these claims “requiresejectment. (A. 7-8).

proof that the individual defendants acted without any authority or justification

with respect to their use and possession of the [Cayuga] Nation’s property.” (A. 8).

Here, although the complaint alleges that defendants’ unlawfulconduct began on April 28, 2014, the complaint also alleges that the“Nation’s leadership dispute was [not] brought to a final resolutionuntil the July 14, 2017 decision of the Acting Assistant Secretary of

3

Indian Affairs . . . .” Thus, the court will be required to resolve issuesof tribal law, specifically the parties’ conflicting claims of theirlegitimate representation of the Nation, to the extent that thecomplaint seeks relief for defendants’ actions prior to July 14, 2017.Indeed, the court expressly acknowledged that it will be required todetermine if any individual defendants were acting in their officialcapacities as Nation representatives to determine whether the defenseof sovereign immunity is available That intrusion into matters oftribal law falls outside the court’s jurisdiction. (Citation omitted)

(Id.).

Moreover, the BLA undertook to resolve the leadership dispute for the sole

purpose of “entering into a contract to provide the [] services’ requested in the

parties’ competing ‘Community Services 638’ contract proposals.” (Id.).

In choosing between the two separate council for that purpose, theBIA made no findings that defendants lacked any colorable claim tothe management of the Nation’s affairs or that any individualdefendant had been unlawfully acting on behalf of the Nation.”Indeed, the BIA Regional Director stated that his reliance on thestatement of support process [i.e. the mail-in survey] “should notfreeze the Nation with its current configuration of leaders.” Hefurther recognized that “[g]oing forward, the meaning of the statementof support campaign is a question of Cayuga Nation law.”

(Id.). For these and other reasons, the dissent would have reversed the lower court

and dismissed Plaintiff-Respondent’s complaint. (A. 9).

In an Order, entered on September 28, 2018, the Fourth Department granted

Defendants-Appellants’ motion for leave to appeal. (A. 9-10). In that Order, the

Fourth Department certified the following question to this Court, “Was the order of

[the Fourth Department] entered on July 25, 2018, properly made?

4

STATEMENT OF THE CASE

The Nation is a federally-recognized Indian nation, operating under a

traditional form of government, governed by its Council of Chiefs. (R. 56). See

Cayuga Nation v. Tanner, 824 F.3d 321, 323 (2d Cir. 2015); George v. Eastern

Regional Director, 49 IBIA 164, 167 (2009). This appeal involves “a longstanding

leadership dispute” between two feuding, political factions within the Nation’s

Council, each claiming a right to exercise dominion and control over the Nation’s

property and businesses. (R. 7, 54).

This action has been brought in the name of the Cayuga Nation, allegedly

“by and through its lawful governing body, the Cayuga Nation Council.” (R 30).

The complaint, however, does not identify the members of this lawful governing

body. (R. 33-34 Tj|16-19). The complaint does name, as defendants, condoled

Heron Chief William Jacobs, condoled Bear Clan Chief Samuel George, Turtle

Clan Mother Brenda Bennett, Bear Clan Mother Pamela Tallchief (f.n.a Pamela

Isaac), and other individuals, selected by their clan mothers to serve as

representatives on the Nation’s Council. (R. 30, 119-12012).

Defendants-Appellants moved to dismiss the action on the grounds no state

court has subject matter jurisdiction to hear an internal governance dispute

involving a sovereign Indian nation. (R. 115). On September 18, 2017, Acting

Supreme Court Justice Dennis F. Bender (“Justice Bender”) issued an Order

5

denying the motion to dismiss. (R. 13).

Defendants-Appellants to vacate and surrender dominion and control over the

Justice Bender further directed

Nation’s property and businesses. (R. 12-13). That order has been automatically

stayed, pursuant to CPLR § 5519(a)(6), pending appeal.

A. Factual Background of Dispute.

The Nation is governed by oral laws and traditions, known as the Great Law

of Peace. George, 49 IBIA at 167. These traditional laws mirror the laws and

traditions of the other traditional nations within the Haudenosaunee Confederacy

(also known as the Six Nations or the Iroquois Confederacy), of which the Nation

is a member. Cayuga Indian Nation of New York v. Eastern Regional Director, 58

IBIA 171, 172 (2014). The Haudenosaunee Great Law dictates the process for the

selection of clan mothers and chiefs. Poodry v. Tonawanda Band of Seneca

Indians, 85 F.3d 874, 877 (2d Cir. 1996).

The Nation is comprised of five clans: the Heron, Bear, Turtle, Wolf and

Snipe Clans. George, 49 IBIA at 167. The Snipe Clan currently has no members.

(R. 276). Each clan appoints a clan mother, who in turns selects a male clan

member to serve as a clan representative who works on becoming a Chief.

George, 49 IBIA at 167. The clan member must next be approved by his clan (R.

277), and then completes training and a condolence ceremony before the Grand

Council for the Haudenosaunee Confederacy before serving as a Chief. George,

6

49 IBIA at 167. In the absence of a condoled chief, a clan mother may appoint a

“seatwarmer” or representative to temporarily serve on the Council. Id. The clan

mother retains the power to remove a Chief or a representative, and in consultation

with members of the clan, provide recommendations to the Council on matters of

tribal government. Poodry, 85 F.3d at 877.

Under the Great Law, the five individuals, constituting the members of the

Halftown Council, do not qualify to serve on the Nation’s lawful governing body.

These individuals include Wolf Clan Member Michael Barringer, Bear Clan

Member Donald Jimerson, Turtle Clan Members Gary Wheeler and Tim Twoguns

and Heron Clan Member Clint Halftown. (R. 54 fti.l, 282).

Two of the self-proclaimed clan representatives on the Halftown Council,

Michael Barringer and Donald Jimerson, were never nominated by a clan mother.

(R. 54, fn. 1, 59, 203, 282; A. 34). Even the Halftown Council acknowledges

these individuals would not qualify as duly appointed clan representatives on the

Nation’s Council. (R. 277, IV11). Michael Barringer, identified as being from the

Wolf Clan, was never appointed to the Council due to the fact the Wolf Clan has

no clan mother. (R. 1391169-71, 231, 278; A. 34).

Appellant Bear Clan Mother Pamela Tallchief declared, under oath, Donald

Jimerson was never nominated and designated by the Bear Clan as its Council

representative. (R. 140 172, 28317; A. 34). According to Tallchief, the Bear Clan

7

is currently represented on the Nation’s Council by Sachem Chief Samuel George

and Clan Representative Alan George. (R. 283 16). Sachem Chief George is one

of the Appellants. Clan Representative George was never named as a defendant in

this action. (R. 28).

The three remaining members of the Halftown Council have been removed

and replaced by their clan mothers. (R. 158, 165-166; A. 34). Gary Wheeler and

Tim Twoguns were originally appointed by Turtle Clan Mother Lena Pierce to

serve as temporary clan representatives (i.e. seatwarmers). (R. 158, 165).

Following the death of their clan mother, Wheeler and Twoguns were later

removed and replaced by the new Turtle Clan Mother, Brenda Bennett, who is also

an Appellant in this matter. (Id.; A. 34). The Turtle Clan is now duly represented

by Appellants, Martin Lay and Tyler Seneca. (R 119 12(d), 273, 303 13,

3341114-15).

Finally, Clint Halftown was appointed, but later removed by his Clan

Mother Bernadette Hill as the Heron Clan representative. (R. 158, 182; A. 34).

George, 49 IBIA at 170. Clan Mother Hill subsequently replaced Halftown with

Clan Representative Karl Hill, who is an Appellant. (R. 158, 182). William

Jacobs was also appointed to the Council by Heron Clan Mother Hill and had

served, at one time, on the Council as a Clan Representative, along with Halftown.

(R. 158). Jacobs, however, is now a condoled chief for the Heron Clan, who is one

8

of the Appellants to this appeal. (R. 119). Since the death of Bernadette Hill,

“there has not been an agreement regarding who would replace her.” (A. 34).

No member of the Halfitown Council is a condoled chief or has the support

of any condoled chief or clan mother. (A. 34). To recognize these individuals as

clan representatives on the Nation’s Council would require the Nation to abandon

its ancient customs, laws and traditions embodied in the Great Law of Peace.

B. Prior State Court Action.

In 2014, the Halftown Council commenced an action before Justice Bender

seeking the same relief as sought in this case: an order directing the Jacobs

Council to vacate and surrender Nation properties and enjoining the Jacobs

Council from taking any action to disrupt the Halftown Council in its commercial

activities. Cayuga Nation v. Jacobs, 44 Misc.3d 389 (Seneca Co. Sup. Ct. 2014)

appeal dismissed 132 A.D.3d 1264 (4th Dep’t. 2015). “Most, if not all, of the

individual parties [to this appeal] were before [Justice Bender] in 2014. Then as

now, the dispute was fundamentally over control of Nation property.” (R. 7).

In that prior case, Justice Bender ruled that because:

the underlying allegations in this law suit are fundamentally foundedupon the longstanding question of who has the right to lead theNation, no determination could be made by this Court withoutinterfering with tribal sovereignty and self government. Accordingly,[the] Court lacks subject matter jurisdiction of the preliminaryquestion in the case.

44 Misc.3d at 394. At that time, even though the BIA had listed Clint Halftown as

9

the Nation’s “federal representative,” Justice Bender correctly stated Halftown’s

“authority is defined and controlled by the Nation and not by the BIA. Id. at 393

citing George 49 IBIA at 65. Consequently, Justice Bender dismissed the prior

action “because the seminal question of who had the right to lead the Nation, was

one which the Court found it lacked jurisdiction to determine.” (R. 7).

C. The Current Action Pending on Appeal.

This longstanding leadership dispute is before Justice Bender once again.

However, instead of dismissing this action for lack of subject matter jurisdiction,

Justice Bender has now issued a preliminary mandatory injunction ordering

Appellants to “immediately vacate” and deliver possession and control of certain

parcels of real property and to surrender all dominion” over the Nation’s personal

property to the Halftown Council. (R. 12-13). That order has been automatically

stayed, pursuant to CPLR § 5519(a)(6), pending appeal.

In his Decision, entered on September 8, 2017, Justice Bender was under the

belief the Nation’s leadership dispute had been brought to a final resolution by the

determination by the BIA involving “competing Indian Self-Determination and

Education Assistance Act (ISDA) 638 proposals from the Jacobs and Halftown

Councils.” (R. 8). Justice Bender wrote:

There must be an end to litigation and the BIA is much better versedin guiding the Nation to reach a determination as to who should berecognized as the federal representative for Nation activities. Asnoted, this dispute has been ongoing since 2004, and the Nation

10

members, unable to resolve the dispute amongst themselves,appropriately looked to the BIA for assistance.

(R. 8).

The Halftown Council sought “assistance” from the BIA to spearhead an

“Initiative” asking the Cayuga citizens to sign a “Statement of Support.” (R. 59).

In the Statement of Support, Cayuga citizens were asked to sign and mail a

statement opposing efforts by the Unity Council (also known as the Jacobs

Council) to “involve persons outside the Cayuga Nation in our Nation’s internal

affairs.” (R. 282). Ironically, it has been the Halftown Council, not the Jacobs

Council, which brought this state court action, asking Justice Bender to resolve a

dispute involving the Nation’s internal affairs.

D. The Mail-In Survey Initiative & Statement of Support.

The Plaintiff-Respondent successful argued before the Fourth Department

the Initiative spearheaded by the five individuals who make up the Halftown

Council showed a significant majority of Cayuga citizens had stated their support

for the Halftown Council and thereby constituted a resolution of the leadership

dispute by a tribal mechanism. (A. 5-6). In the statement of support, Cayuga

citizens were told the Unity Council (also known as the Jacobs Council) had

“inappropriately adopted the name of the Nation’s Council” in “its attempt to take

over our government” by involving “persons outside of the Cayuga Nation in our

Nation’s internal affairs.” (R. 282). The BIA Regional Director acknowledged

11

“the language used in the statement of support is not neutral, clearly favoring the

Halftown Council.” (A. 35). Importantly, Cayuga citizens were never told the

names of the chiefs and clan representatives forming the Unity or Jacobs Council.

(R. 203, 276-282).

The Jacobs Council opposed the Initiative to solicit the support of Cayuga

citizens on behalf of the Halftown Council, rejected the notion that this mail-in

support campaign was consistent with the Great Law’s process of reaching

consensus, and played no role in the method by which Cayuga citizens were

solicited to participate in this support campaign. (R. 57; A, 34-35). The Halftown

Council sought assistance from the Regional Director to BIA to launch the

Initiative and to review the so-called enrollment list of adult citizens to whom the

Statement of Support would be given. (R. 206, 339-3401138-49). The Jacobs

Council was never given the opportunity to review the so-called enrollment list or

to oversee the tabulation of these support statements that were mailed directly to

the Halftown Council. (R. 131138, 137161(f), 146186(f)). More importantly, the

solicitation of support statements conflicts with the process of reaching consensus

embodied by the Great Law of Peace. (R. 240, 250, 271).

Under Cayuga law, the process of reaching consensus involves a deliberative

process of listening, questioning, discussing and exchanging ideas before reaching

a decision. (R. 338 133). These deliberations are facilitated by clan mothers.

12

(Id.). Federal and state courts use this same deliberative, consensus process injury

deliberations. However, no court would ever ask a juror to deliberate alone or to

take home a mail-in verdict sheet.

Even the BIA Regional Director expressed concerns as to the legitimacy of

the Initiative.

Given the important role of the Clan Mothers, it is of concern to BIAthat the Cayuga Nation Clan Mothers do not agree with the statementof support process and do not agree that the Council members thatwere named in the statement of support process are on the Councilwith the support of their clan mothers in accordance with CayugaNation law. The concern is essentially that the Halftown Council isdescribing itself as working in accordance with traditional processesthat some of the people who are named as participating in that Councilwere apparently not chosen in accordance with those processes, andthere is controversy over whether others were removed by their ClanMothers.

(A. 34). Specifically, the Regional Director noted “that Michael Barringer is

identified as being from the Wolf Clan and there is no Wolf Clan Mother

according to the mailings sent by the Halftown Council, and Donald Jimerson is

not accepted by the Bear Clan Mother as the serving on the Council.” (Id ). The

Regional Director further noted the three remaining members of the Halftown

Council had been removed by their Clan Mothers. (Id.).

Despite these concerns and over the strenuous objections of the Jacobs

Council, the BIA accepted the results of this Initiative offered by these five men

who form the Halftown Council. The BIA offered the following justification:

13

But to reject the principle that a statement of support campaign couldbe valid would be to hold that the Cayuga Nation’s citizens lack theright to choose a government that reflects their choices - that thepower of the Cayuga Nation Council to govern its citizens does notderive from the consent of the governed. Nothing in federal or triballaw authorizes me to deny the Nation’s citizens their fundamentalhuman rights to have a say in their own government.

(A. 31).

Acceptance of this politically-motivated campaign of support initiated by

one political faction amounts to nothing more than legal genocide of the ancient

customs, laws and traditions that have governed the Nation for centuries and which

predates the ratification of the Constitution of the United States. More

importantly, the Great Law of Peace establishes a participatory form of

government through a clan system.

Early New England settlers mimicked and adopted these traditions through

town hall meetings, a practice that continues today. The method employed by the

Nation to select its leaders under the Great Law of Peace is as democratic as the

method by which citizens of the United States select its President. After all, the

President of the United States is not elected by popular or majority vote of U.S.

citizens, but by state electors who are members of the Electoral College. U.S.

Const, art. II, § 1.

“[Mjindful that important tensions remain for the Cayuga to work through”

(A. 38), the BIA found that “under these specific circumstances” it would accept

14

the “limited nature of the Initiative” for the purpose of deciding “whether either of

the entities that [had] submitted a proposal for a 638 Community Services contract

[had] provided adequate evidence that they represent the Cayuga Nation,” leaving

“future Cayuga Nation decisions ... in the hands of the Cayuga citizens and

leaders.” (R. 67-68; A. 38). “Ultimately, all BIA [could] do [was] decide” which

feuding, political faction would be awarded the federal grant. (Id.). “Going

forward,” however “the meaning of the statement of support is a question of

Cayuga Nation law.” (Id.). “[W]hile BIA may interpret tribal law in the limited

circumstances discussed supra, Federal officials must still be cautious to defer to

the tribe’s interpretation of its own laws and its ability to internally resolve its

disputes.” (R. 68).

15

ARGUMENT

I

THE CAYUGA NATION HAS EXCLUSIVE JURISDICTIONOVER ITS INTERNAL AFFAIRS AND GOVERNANCE

It is well-settled that the right of self-government is a right held by Indian

nations in their capacity as sovereign entities. Bowen v. Doyle, 880 F.Supp. 99,

112 (W.D.N.Y. 1995). Under federal law, an Indian nation is a “distinct political

society . . . capable of managing its own affairs and governing itself.” Id. citing

Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831) and Worcester v.

Georgia, 31 U.S. (6 Pet.) 515, 556 (1832); Tanner, 824 F.3d. at 327. By entering

into treaties, Indian nations did not “surrender [their] independence— [their] right

to self-government.” Bowen, 880 F. Supp. at 112 citing Worcester, 31 U.S. at 561.

To the contrary, “[i]mplicit in these treaty terms . . . was the understanding that the

internal affairs of the Indians remained exclusively within the jurisdiction of

whatever tribal government existed.” Williams v. Lee, 358 U.S. 217, 221-22

(1959). It is now a bedrock principle of federal Indian law that Indian nations

have exclusive authority to resolve disputes over internal affairs. Bowen, 880 F.

Supp. at 112-13; Tanner, 824 F.3d. at 327.

The basis for this bedrock principle “is the rule that Indian tribes, as

sovereign entities, retain all rights not specifically withdrawn by treaty or federal

law.” Bowen, 880 F. Supp. at 113. See, also, United States v. Wheeler, 435 U.S.

16

313, 323 (1978). Because an Indian nation retains all inherent attributes of

sovereignty not withdrawn by treaty or federal law, the proper inference from

congressional silence is that the sovereign power remains intact. Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130, 149 (1982).

A. Federal and State Courts Lack Jurisdiction to Resolve Disputesbetween Feuding Political Factions within the Nation’s Council.

Federal courts have continued to apply the rule that Indian nations have the

right to control tribal affairs on its reservation, free from federal and state court

interference. Tanner, 824 F.3d. at 327 (“First, and most significantly, federal

courts lack authority to resolve internal disputes about tribal law.”); Bowen, 880 F.

Supp. at 115 (“Indeed, it is difficult to imagine a more intrusive intervention into

the internal affairs of the Nation than that which results from the Orders issued by

the State Court.”).

In Bowen, the United States District Court for the Western District of New

York rejected the assertion that 25 U.S.C. § 233 was a congressional grant of

jurisdiction to state courts to hear disputes over the internal governance of a Indian

nation. Id. The district court held there existed no “clear and plain” showing that

Congress intended to interfere with an Indian nation’s exclusive authority over

internal affairs and governance. Id. at 116.

Nowhere in the language of § 233 is there a “clear and plain”statement that § 233 abrogates the Nation’s treaty rights to self-government and exclusive jurisdiction over its internal affairs. Indeed,

17

the Treaty of 1794 is not even mentioned. Nor does the legislativehistory of § 233 show that Congress intended to abrogate the Nation’streaty rights. To the contrary, the legislative history contains anexpress disclaimer of any intention to affect treaty rights. S.Rep. No.1836, 81st Cong., 2d Sess. 2 (1950) (“This proposed legislationexpressly subjects the Indians in the State of New York to the. civillaws of that State, without impairing any ... rights under existingtreaties with the United States.”).

Id. Accordingly, the federal court held Congress never intended state courts “to

become embroiled in internal political disputes amongst officials of the [Indian]

Nation’s government.” Id. at 118.

Since Congress enacted 25 U.S.C. § 233 in 1950, federal and state courts

have uniformly held Haudenosaunee nations have the exclusive authority to

' resolve internal disputes relating to governance, land, and the interpretation of their

laws. See, e.g., Tanner, 824 F.3d at 327; Bowen, 880 F. Supp. at 115; Ransom v.

St. Regis Mohawk Educ. & Community Fund, Inc., 86 N.Y.2d 553, 560 fh. 3

(1995) (observing “25 U.S.C. § 233 grants the courts of New York jurisdiction

over private disputes, but not disputes involving a sovereign Indian nation”);

Alexander v. Hart, 64 A.D.3d 940, 942 (3d Dep’t. 2009)(“State courts do not

violate an Indian nation’s sovereign right to self-government by exercising

jurisdiction over disputes between private civil litigants on matters that have no

bearing on the internal affairs of the tribal nation’s government”); Seneca v.

Seneca, 293 A.D.2d 56, 58-59 (4th Dep’t. 2002)(finding a state court exercising

subject matter jurisdiction over a dispute that does not implicate the internal affairs

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of an Indian nation does not violate the Nation’s right to self-government); Jacobs,

44 Misc.3d 389 (Seneca Co. Sup. Ct. 2014); Bennett v. Fink Construction Co.,

Inc.3 47 Misc.2d 283, 285 (Erie Co. Sup. Ct. 1965)(Justice Matthew J. Jasen

finding an Indian nation “has the power of self government and in its capacity of a

sovereign nation, is not subservient to the orders and directions of the courts of

New York State.”).

B. The BIA Has No Role in Selecting the Nation’s Leaders.

Congress has not given the BIA any authority or obligation to intervene or

resolve the internal disputes of a sovereign Indian nation. Cayuga Indian Nation,

58 IBIA at 179. To the contrary, principles of tribal sovereignty and self-

determination serve to constrain the BIA from intruding upon the Nation’s internal

affairs. Id. at 178.

Since no federal statute or regulation imposes a free-standing obligation or

right for the BIA to intervene in an internal dispute involving the Nation’s land or

governance, id. at 179, any decision or determination rendered by the BIA must be

read narrowly so as not to infringe upon the Nation’s right of self-government and

exclusive jurisdiction over its internal affairs. Bowen, 880 F.Supp. at 112; Cayuga

Indian Nation, 58 IBIA at 180; George, 49 IBIA at 187 (“principles of tribal

sovereignty and self-determination will require BIA to refrain from interpreting

tribal law, and to recognize a tribal official on an interim basis, pending resolution

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of a dispute in an appropriate tribal forum”). No decision or determination by the

BIA should be read “as an independent determination of the composition of the

Council or its proper organization among the clans, which remains a matter for the

Nation to decide.” George,40 IBIA at 188.

However, “when an intra-tribal dispute has not been resolved and the [BIA]

must deal with the tribe for govemment-to-govemment purposes, the [BIA] may

need to recognize certain individuals as tribal officials on an interim basis, pending

final resolution by the tribe.” Id. at 186 citing LaRocque v. Aberdeen Area

Director, 29 IBIA 201, 203 (1996).

Recognition is not required in the abstract. BIA “is not required tomake any recognition decision during a tribal leadership dispute, ifinterim recognition is not needed for govemment-to-govemmentpurposes.

George, 49 IBIA at 186.

On July 13, 2017, the BIA Acting Assistant Secretary, Michael S. Black,

issued an administrative decision for the federal purpose of resolving a dispute

over “competing Indian Self-Determination and Education Assistance Act (ISDA)

638 proposals from the Jacobs and Halftown Councils.” (R. 54). This

administrative decision (the “Black Decision”) specifically recognized the

“bedrock principle of federal Indian law that every tribe is ‘capable of managing its

own affairs and governing itself.’” (R. 64 citing Cal. Valley Miwok Tribe v. United

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States, 515 F.3d 1262, 1263 (D.C. Cir. 2008), quoting Cherokee Nation, 30 U.S. (5

Pet.) at 16). It further noted that:

While the BIA may at times be obliged to recognize one side in adispute as part of its responsibilities for carrying on governmentrelations with the Tribes, such recognition is made only on aninterim basis. (Emphasis added).

(R. 64 citing Attorney’s Process & Investigation Servs. v. Sac & Fox Tribe, 609

F.3d 927, 943 (8th Cir. 2010)). The BIA cautioned that while it may interpret

tribal law under the limited circumstances, “Federal officials must still be cautious

to defer to the tribe’s interpretation of its own laws and its ability to internally

resolve its disputes.” (R. 68).

Prior to the submission of these “competing” ISDA 638 proposals from the

Jacobs and Halftown Councils, the BIA had refused to review or resolve these

internal disputes because “circumstances [did] not warrant a decision on the merits

of Nation law regarding who should be recognized.” (R. 75). In one prior

decision, the BIA did note “those circumstances” could change in the future,

“conceivably when the time comes for the Nation to renew an ISDA contract.”

(Id.). The Black Decision, therefore, was issued for the limited purpose of

resolving two competing proposals for federal funding. (R. 81). Nothing in the

Black Decision, however, purported to resolve internal disputes over the control

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and operation of the Nation’s businesses or properties.3 (R. 64, 68, 81).

The BIA has no authority to “serve as the arbiter for tribal disputes for the

convenience of other agencies or third parties.” Cayuga Indian Nation, 58 IBIA at

182. For that matter, such determinations have no binding effect on matters

pending before other BIA officials. Id. at 183. (R. 68) (quoting from the Black

Decision, “Federal officials must still be cautious to defer to the tribe’s

interpretation of its own laws and its ability to internally resolve its disputes.”).

Any BIA decision is “fatally flawed” when it extends recognition for purposes

beyond “conduct of any specified BIA function or program.” Cayuga Indian

Nation, 58 IBIA at 179. Consequently, “principles of tribal sovereignty and self-

determination must prevail, and must act as constraints on BIA intervention, when

there is no separate matter that requires or separately triggers a need for the BIA

action that implicated the govemment-to-govemment relationship, and which in

turn necessitates a BIA decision on the tribal dispute.” Id. at 180.

In the Fourth Department, the majority mistakenly opined “deference” must

be given by state courts “to judgment of the Executive Branch as to who represents

3 The majority was under the misperception that these competing applications sought funding forthe Nation office located on the subject property. (A. 5). Although the BIA indicated that thetwo applications both sought funding “to maintain office space, equipment and supplies tosupport the office, and communication infrastructure” (A 25, fin. 3), the Halftown and JacobsCouncils have continued to maintain separate offices since 2014. Consequently, the majorityerred when it stated the BIA “determination concerns the very property that is the subject of thisaction” and never determined the Halftown Group had “right to control the property at issue inthis action.” (A. 7)

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a tribe.” (A. 7) quoting Timbisha Shoshone Tribe v. Salazar, 678 F.3d 935, 938

(D.C. Cir. 2013). This quotation has been taken out-of-context and contradicts the

bedrock principles that sovereign Indian nations have exclusive jurisdiction to

resolve disputes over internal affairs. See, e.g., Tanner, 824 F.3d. at 327; Bowen,

880 F. Supp. at 115.

In reviewing relevant case law, there is only one category of cases in which

deference is given to a recognition decision made by the BIA. The issues

presented in those cases relate to whether a party has standing to bring a lawsuit on

behalf of an Indian nation, not on whether the court has subject matter jurisdiction

to hear the underlying dispute. See, e.g., Tanner, 824 F.3d 321 (2d Cir. 2016);

Salazar, 678 F.3d 935 (D.C. Cir. 2013).

In Salazar, a faction of an Indian nation, purporting to be its tribal council,

brought an action against the United States Department of Interior and the United

States Treasury, seeking declaratory and injunctive relief to prevent funds being

distributed directly to tribal members on the grounds distribution of these funds

would constitute an unconstitutional taking of Nation property. Salazar, 678 F.3d

at 936. However, before addressing plaintiffs’ constitutional claims, the United

States Court of Appeals for the District of Columbia Circuit first reviewed whether

this political faction had standing to sue. Id. The Circuit Court dismissed the

complaint without reaching the merits because a newly-elected Council had been

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recognized by the BIA. Id. at 937-39. Consequently, the Circuit Court found the

plaintiff lacked standing to bring an action on behalf of the tribe. Id. at 939.

In Tanner, the United States Court of Appeals for the Second Circuit ruled

an interim recognition decision from the BIA was sufficient proof to show Clint

Halftown had the authority to initiate litigation in the Nation’s name against an

outside, third party-the Village of Union Springs. Tanner, 824 F.3d. at 330. In a

footnote, the Second Circuit specifically noted Halftown and his supporters

claimed to be acting on behalf of the Nation’s governing body, a fact disputed by

other Council members. Id. at 332 fii. 4. Nonetheless, its decision was intended

“neither to endorse nor disparage” the Halftown Council’s “claim to authority

under tribal law” on which the Second Circuit “take no position.” Id. Because the

Tanner complaint otherwise presented a federal question as to whether a village

anti-gambling ordinance was preempted by federal law, the Second Circuit found

the district court had jurisdiction and erred by dismissing the complaint on the

grounds Haltfown lacked standing to commence the action. Id. at 333.

Neither of these cases address whether federal treaties and statutes have

preempted New York courts from hearing disputes involving two feuding, political

faction within the Nation, each claiming to be the Nation’s lawful governing body,

and each claiming to have the right to exercise dominion and control over Nation

property and businesses. Consequently, those federal appellate decisions are

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neither relevant nor controlling on the merits of this appeal.

Although the Congress has given the BIA authority to manage “all matters

arising out of Indian relations,” this provision does not allow the BIA to manage

the internal affairs and governance of an Indian nation. 25 U.S.C. § 2. The BIA is

given the authority to manage the relationship between the federal government and

an Indian nation or tribe. The Interior Board of Indian Appeals (IBIA) has made

this point quite clear in each and every one of its decisions. See, e.g., Cayuga

Indian Nation, 58 IBIA at 180 (“principles of tribal sovereignty and self-

determination must prevail, and must act as constraints on BIA intervention, when

there is no separate matter that requires or separately triggers a need for the BIA

action that implicated the govemment-to-govemment relationship, and which in

turn necessitates a BIA decision on the tribal dispute.”)

During oral argument and in its Post-Argument Submission to the Fourth

Department, the Halftown Group contended Justice Bender “was obligated to

respect the BIA determination under the Supremacy Clause, as the United States

has supreme authority to make such determination with regard to Indian nations.”

The Supremacy Clause establishes that the Constitution of the United States, “and

the Laws of the United States which shall be made in Pursuance thereof; and all

Treaties made, or which shall be made, under the Authority of the Unites States

shall be the supreme Law of the Land . . . .”. U.S. Const, art. VI, cl. 2. The phrase

25

“the Laws of the United States which shall be made in Pursuance thereof’ refers

to acts of Congress, not to administrative decisions issued by federal agencies. See

Alden v. Maine, 527 U.S. 706, 732 (1999)(finding the Supremacy Clause delegates

to Congress the power to establish the supreme law of the land when acting within

its enumerated powers). While the Supremacy Clause does prohibit New York

courts from exercising jurisdiction over internal governance dispute due to the

enactment of 25 U.S.C. § 233, it is inapplicable to an interim decision made by a

federal agency for the limited purpose of ensuring federal funds, appropriated by

Congress, are made available to the Cayuga people.

More importantly, as the dissent correctly stated, “[T]he BIA made no

finding that defendants lacked any colorable claim to the management of the

Nation’s affairs or that any individual defendant had been unlawfully acting on

behalf of the Nation.” (A. 8).

The BIA determination therefore does not preclude defendants fromcontending that they had and continue to have a legitimate claimunder traditional law to exercise authority Over the property at issue asNation representatives, and as such the “Cayuga Nation Council”cannot establish that defendants are collaterally estopped from raisingthat contention in defense of the claims against them (see Kaufman vEli Lilly & Co., 65 NY2d 449, 456 [1985]). Inasmuch as the issue ofdefendants’ legitimate authority or justification is material to each ofthe causes of action in the complaint, the court cannot mle on thoseclaims without impermissibly resolving questions of tribal law (seeSeneca, 293 AD2d at 58; cf. Cayuga Nation, 824 F.3d at 330) Thus,[the dissent] would reverse the order insofar as appealed from, grantdefendants’ motion to dismiss the complaint, and vacate the firstthrough fourth ordering paragraphs. (A. 9)

26

This Court should adopt the dissent’s position and reverse majority’s opinion.

II

NO FEDERAL DISTRICT OR CIRCUIT COURT HASRULED ON THE MERITS OF THE ADMINISTRATIVE

CHALLENGE TO THE BIA DETERMINATION

Some of the Appellants in this appeal have brought a federal administrative

procedure action challenging the Black Decision. (R. 331-358; A. 6). Although

the majority stated the United States District Court for the District of Columbia

“declined to overturn” the Black Decision (A. 6), no decision on the merits have

been issued by that court. Instead, the district court only denied an application for

a preliminary injunction. Cayuga Nation v. Zinke, 302 F. Supp.3d 362(D.C. 2018).

In Zinke, the United States District Court for the District of Columbia found

the BIA decision “was a narrow one,” which did not “‘impose’ a form of

governance, or particular leaders, on the Cayuga Nation.” Id. at 368. The BIA has

the limited authority to make a recognition decision, on an interim basis, only

when an internal governance dispute has deteriorated to the point that recognition

is “essential for Federal purposes.” Tanner, 824 F.3d at 328; accord Zinke, 302 F.

Supp.3d at 368. Two “inconsistent proposals” submitted by the Halftown Group

and the Jacobs Group “forced [the BIA] to determine which of two rival factions

represented the Cayuga Nation’s rightful government for purposes of conducting

government-to-government relations with the United States Id. (emphasis

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added). “Making this necessary determination was not the equivalent of

‘imposing’ anything on the Cayuga Nation.” Id. “[T]he Cayuga Nation remains

free to govern itself however it chooses.” Id. at 369. The Zinke court found the

BIA was forced to make a “determination about the Nation’s government for

purposes of entering into contracts with the Nation and providing it with services

and funding.” Id.

The federal district court also found that any injury, caused by “the Halftown

Group taking advantage of the administrative decisions” in other forums, is

“speculative and dependent on actions of third parties or even other courts Id. at

373. The Jacobs Group had argued they could be “injured by relief that may or

may not be granted by a New York State court . . . .” Id. The Zinke court

recognized it “does not have control” over actions taken by other courts. Id.

Consequently, even Zinke does not support the argument, the BIA administrative

decision or the Zinke decision have finally resolved the internal governance dispute

between the Halftown Group and the Jacobs Group.

CONCLUSION

If either the Halftown Council or the Jacobs Council is “wrongfully” or

“impermissibly exercising dominion and control over Nation property,” then that is

a subject matter within the Nation’s exclusive jurisdiction to be resolved in

accordance with the Nation’s customs, laws and traditions. Federal and state

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courts, as well as state and federal agencies, do not have jurisdiction to resolve

such internal leadership disputes without violating federal treaties or infringing

upon the Nation’s right of self-determination and self-governance. Bowen, 880 F.

Supp. at 112.

For the reasons stated above, Defendants-Appellants respectfully request this

Court issue an Order, responding in the negative to the certified questions

submitted by the Fourth Department, and directing the Fourth Department to enter

an order reversing the Order of Acting Supreme Court Justice Dennis F. Bender,

entered on September 18, 2017, granting Defendants-Appellants’ motion to

dismiss, and vacating the first through fourth ordering paragraphs.

Dated: Syracuse, New YorkNovember 27, 2018

MARGARET A. MURPHY, P.C.Attorneys for Defendants-Appellants

By: Margaret A. Murphy, of counsel5354 Briercliff DriveHamburjTelephone: (7/6) 867-1536

York 14075

J. HEATH, ESQ.Attorney for Defendants-Appellants512 Janesville AvenueSyracuse, New York 13210Telephone: (315) 475-2559Facsimile: (315) 475-2465

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Jenna Macaulay, of counsel

MacKAY, CASWELL, CALLAHAN, P.C.Attorneys for Defendants-AppellantsJoseph M. Callahan, of counsel6739 East Myers RoadEast Syracuse, New York 13057Telephone: (315) 472-5201Facsimile: (315)472-5002

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